3. Merits Review

Question 1

What is merits review?

Answer 1

If reason for decision is not achieved by FOI/RTI application, merits review allows (1) internal review by the agency itself, or (2) external review by a tribunal or board of review - so applicant can get information on decisions made

Question 2

Elements of executive decision making

3

Answer 2

1. Questions of fact
2. Questions of discretion
3. Questions of Law

Question 3

Question of fact

Answer 3

Evidence and findings from evidence
Questions of whether the evidence support the existence of the factual findings made by the decision maker.

Waterford v Commonwealth (1986) 163 CLR 54, 77-78, Brennan J

Question 4

Question of law

Answer 4

Lawful powers of the decision-maker.
Involves a statutory interpretation: Hope v Bathurst City Council (1980)144 CLR 1
E.g. whether the definitions of terms were correct; whether decision maker was properly authorised to act as the decision maker; procedure fairness issue; imposing of ridiculous conditions

Question 5

Question of discretion

Answer 5

Choices available to the decision-maker
E.g. whether to grant assistance ‘with or without conditions’

Question 6

merit review v judicial review

Question 7

Decisions subject to merits review

Question 8

Who has standing to apply for merits review

Question 9

Types of submissions that can be made in merits review

Answer 9

Factual arguments: decision maker was incorrect in the factual findings; Accuracy of inferences from facts (chronic lateness = undiligent worker?); evidence of new/alt/overlooked evidence are allowed per s43 AATA: Shi v MARA (2008) 248 ALR 390

Discretionary arguments: too much/not enough weight is given to a particular consideration, which could alter the decision outcome; impact on applicant/general public; proportionality of decision; harshness of penalty; justice or fairness of decision

Also is a chance to critique relevance of govt policy which structured the decision-making power: Drake case

Legal arguments: Were the statutory terms interpreted correctly? Procedural errors/fairness issue; not aligned to purposes,…

Question 10

Availability of merits review

Answer 10

It is stipulated in the enabling legislation. Check if there is a full merits review powers provided, or whether there are conditions imposed on type/scope.

Example of a full merits review powers: merit review body AATA can affirm, vary, set aside decision under review - s43(1) AATA 1975

Question 11

Drake v MIEA (No 1 ) (1979) 2 ALD 60

Answer 11

The type of decision making by AATA by s43(1) is the “correct or preferable one on the material before the Tribunal”
Correct = questions of law
Preferable = questions of discretion
Material before tribunal = fresh evidence and inferences from evidence = questions of fact

Question 12

Shi v MARA (2008)

Answer 12

To achieve the purpose of s43 AATA, tribunal must have regard to new or fresh evidence: Kirby J.

In the Shi v MARA case, the object of MARA is to protect the public, not to punish migration agents. This is best achieved by making review decision on the most updated evidence.

Question 13

3 types of merits review bodies

Answer 13

Type of merit review available depends on the enabling statute.
1. Internal review – AROs, to the Minister etc.
2. Specialist external review – only hears on specific subject matter; Information Commissioner (Qld) etc.
3. Generalist external review – AAT, QCAT etc.